It Ain’t What They Call You…

Facebook's "real name" policy is in the headlines. The policy limits individuals to one account each and requires that those accounts be held under their "authentic identity." The policy has its advocates and its detractors; their opposing views neatly distil the tension between freedom of expression and privacy that is such a feature of modern life.

Firmly among the naysayers is the so-called Nameless Coalition, comprised of human rights groups such as the American Civil Liberties Union, Human Rights Watch, the Civil & Liberal Initiative for Peace of Afghanistan, the Digital Rights Foundation of Pakistan and the Electronic Frontier Foundation. Last week the coalition penned an open letter to Mark Zuckerberg & Co claiming that policy "disregards the circumstances of users in non-western countries, exposes its users to danger, disrespects the identities of its users, and curtails free speech."

The cloak of anonymity

The coalition has asked Facebook to respond by 31 October. Facebook has yet to issue a public statement, but the company is on record as saying that "our policy against fake names helps make Facebook a safer place." Facebook say the policy protects users from the risks of harassment, bullying and defamation that are seen too often if users can hide behind the cloak of anonymity.

A recent ruling in Germany saw at least one European jurisdiction side with the coalition's arguments. In July, the Hamburg Data Protection Authority - which is responsible for policing Facebook across Germany - decided that Facebook is no longer permitted to enforce its policy in the country.

The ruling was based on a legal provision that is unique to Germany - s13 VI of the German Telemedia Act. This requires "telemedia services to allow pseudonymous users, insofar as this is technically feasible and reasonable," its rationale being that individuals should have the right to determine the disclosure of their personal data.

Crossing the Rubicon?

But what next for the policy? Will other jurisdictions follow the German example? Or could Facebook even cross the Rubicon and make its own changes to something that, so far at least, has been immutable?

The arguments in favour of the policy are not without merit. Many individuals and companies have found themselves the victims of online abuse; when this comes from an anonymous perpetrator, it is even more difficult to stop. In the UK, a court order is required to obtain information from a third party, which may unmask the identity of an anonymous individual for the purpose of legal proceedings. Obtaining these court orders can be time-consuming and expensive.

Against this, there are some individuals who will be exposed to abuse and harassment if they are forced to operate under their real name online. They include victims of domestic violence, who wish to hide behind an online pseudonym to avoid contact from their ex-partner, and those undergoing gender reassignment, who want to trial their new name online before committing to it on an everyday basis.

Time for compromise?

There is a compromise: a "partial real name" policy. Facebook could require individuals to register under their real name, but then only permit this information to be accessible to the social networking company itself, or to third parties for legal enforcement reasons. This would give a measure of protection against libellous or criminal activity.

Other social network giants appear unconcerned by the problems associated with pseudonyms, with Instagram, Twitter and Google+ all freely permitting their use. As predicted by Facebook, this has led to anonymous users engaging in harassment and the problems with seeking redress that occur precisely because they're anonymous. But although the social networks have acknowledged their struggle to contend with the problem, the law has proved creative: in June 2015, High Court judge Mr Justice Nicol permitted legal proceedings to be served via Instagram on an individual operating under a pseudonym. The decision goes some way to alleviating the problem that anonymity poses in legal proceedings and as such may allow individuals on those sites to continue enjoying the benefits that pseudonyms provide them online.

It ain't what they call you...

Despite this development, it is unlikely that a ruling similar to that in Germany will be seen in the UK. There is no equivalent to the German legislation requiring telemedia services to allow anonymous users, and no obvious violation of data protection legislation or privacy rights.

Where does this leave us, as members or potential members of Facebook? Our names and identity are our personal data, and personal data can only be processed "fairly and lawfully." But when we sign up to Facebook, we consent to the real name policy, regardless of its pros and cons.

So it comes to this: if you don't like the real name policy, don't sign up to Facebook. After all, your personal data is yours, not theirs; you're free to choose social networking sites that allow the use of pseudonyms. The likelihood of Facebook unilaterally changing the policy is slim, so if you are going to be a Facebook member, bear in mind W. C. Fields' famous aphorism: "It ain't what they call you, it's what you answer to."

Links:

This article by Rebecca Toman was first published in the Huffington Post on 9 October 2015.

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The Legal Ombudsman is an independent organisation set up to help resolve disputes concerning legal services.Further information about the Legal Ombudsman can be found at its website: www.legalombudsman.org.uk